New Publication: The Mental Capacity Act requirements when an individual lacks the mental capacity to consent to treatment and care

There are a range of health conditions which may affect an individual’s mental capacity to consent to care or treatment: neurological diseases, mental health issues, learning disabilities, brain injury (traumatic or surgical), delirium, chronic brain failure such as dementia, effects of medication or anaesthesia. However, the presence of a disease or condition of the brain does not, in itself, indicate a lack of capacity (NICE 2018) – it is only when the resulting impairment of brain function caused by a condition affects the person’s ability to make decisions, that the level of impairment/cognitive ability needs to be assessed and any incapacity recorded (Brown et al. 2015). A diagnosis may define why someone may lack capacity, but the outcome of this in terms of the individual’s ability to make their own decisions, must be assessed and recorded (BMA 2018). It is also important to acknowledge that a formal diagnosis may not be available and is thus not strictly necessary to the operation of the Act.